Statutory Interpretation Flashcards
booklet 7
what is Statutory Interpretation?
is what judges do when they are trying to understand (interpret) the wording of an Act of Parliament (statute) needed for a case they are hearing.
why do we need Statutory Interpretation?
4 reasons
Acts of Parliament may not be clear
Words change their meaning over time
Some wording can be ambiguous (unclear)
Acts of Parliament cannot cover all eventualities (possible events and outcomes)
what are the rules of Statutory Interpretation
literal rule
golden rule
mischief rule
purposive approach
what is the literal rule
This is when the judge applies the law in its literal and ordinary meaning
features of the literal rule- 2 points
1)Judges will often use an Oxford English Dictionary from the time the law was made to work out the meaning of specific words used in an Act
2)This rule respects Parliamentary Supremacy and the Separation of Powers as it does not allow judges to make laws
example of the literal rule being used- case and the outcome
DPP v Cheeseman 1990
D caught masturbating in public toilets by police who were waiting to catch him at it
Law said it was illegal to expose yourself to ‘passengers in the street’
NOT GUILTY as the police officers were stood still, so weren’t passengers
what is the golden rule
This is when the judge follows the literal rule, until the decision would be absurd, in which case they make the common sense decision.
what are the two different approaches for the golden rule
narrow approach
wide approach
what is the narrow approach
Where a word or phrase is capable of more than one meaning, the court can choose between those possible meanings.
If there is only one meaning, then that meaning must be taken
what is the wide approach
Where a word or phrase has one clear meaning but that meaning would lead to an absurd situation that the court feels should not be allowed, then the court is allowed to modify the words of the statute to avoid this problem
a case example of the narrow approach
R v Allen 1872
D married two women
Bigamy Law said it is illegal to marry more than one person
However this was impossible as a second marriage would never be a valid marriage
GUILTY as ‘marry’ interpreted to mean ‘go through marriage ceremony’
case example of the wide approach
Re Sigsworth 1935
Man killed his mother but still stood to inherit her fortune
There was nothing in the law which forbid this
He was NOT ALLOWED to inherit as the court felt to allow it would be ‘repugnant’
what is the mischief rule
This is when the judge has more flexibility and is able to look for the ‘mischief’ or problem with society that the law was trying to deal with, and then makes the decision that addresses that problem.
example case with the mischief effect
Royal College of Nursing v DHSS 1981
The Abortion Act made it legal for doctors to carry out abortions
Claim made for nurses to be able to do these as well
ALLOWED as the purpose of the Act was to make abortions safe and avoid ‘backstreet abortions’ – nurses were qualified
what is the purposive approach
This is basically an updated version of the Mischief Rule, but it does not require a problem to exist with the previous law. It simply asks, what was the purpose for the law?
a case example for the purposive approach
R v Registrar General ex parte Smith 1990
Act allowed people who had been adopted to obtain their birth certificate when over 18
D applied for birth certificate, but was in prison for murder, and had killed another inmate as he hallucinated that the inmate was his birth mother
NOT ALLOWED access to his birth certificate as the purpose of the Act was to reunite adopted children and birth parents –not to put birth parents lives at risk
literal rule advantages (4)
1)Follows exact words of Parliament
2) certainty
3)Restricts judges powers
4)Prompts Parliament to fix issues
follows exact words of parliament explanation and example
Parliament remains supreme (most important) and also it is democratic as they are elected and judges are not. This respects supremacy of Parliament and separation of powers.
DPP V Cheeseman
certainty explination
case example r v harris 1836
As the law is being applied exactly as it is written, this makes it easier to know what the law is and for lawyers to advise clients, as well as for the public to follow the law. R v Harris 1836
D bit victim’s nose
Law said it is illegal to ‘stab, cut or wound’
NOT GUILTY as biting was not explicitly included in the law
restricts judges power- case example LNER v Berriman 1946
The other rules give unelected and unrepresentative judges too much power. the Literal Rule restricts them so they can only follow Parliament and nothing more.
LNER v Berriman 1946
Man killed whilst oiling points on train tracks
Compensation only allowed for ‘relaying or repairing’ line
NOT ALLOWED as not classed as repairs
Prompts Parliament to fix issues
case explination and example
If Parliament has messed up in writing the law, it is up to them to change it, not up to judges to guess what Parliament would do. The absurd decision should then prompt Parliament to change the law
e.g r v harris
Literal Rule - Disadvantages (4)
1)Assumed every Act is perfectly drafted
2)Words can have more than one meaning
3)Leads to unfair and absurd results
4) too rigid
Assumed every Act is perfectly drafted explination and example-Whiteley v Chappell 1868
it is not always possible to word an Act so that it covers every situation that Parliament intended. Acts are written by draftsmen and there is always the chance of human error as well as unforeseen consequences.
Whiteley v Chappell 1868
D impersonated a dead man to vote
Law said it is illegal to impersonate someone entitled to vote
NOT GUILTY as dead people can’t vote
Leads to unfair and absurd results
explination and example- LNER v Berriman
Because judges refuse to move away from the exact wording of an Act and believe Parliament need to go away and change the law, it can lead to a lack of justice in individual cases. Arguably Parliament would never have intended these.
LNER v Berriman
too rigid explination and example-
Means the law is not able to adapt and change over time – e.g. with medical/technological advancements. This means the law remains static and is never modernised unless Parliament act.
Royal College of Nursing v DHSS would have been decided differently under literal rule
golden rule advantages
1)Respects the exact wording used by Parliament
2)Chooses the most sensible outcome
3)Closes loopholes in the law
4)Saves time for Parliament
Respects the exact wording used by Parliament explination and example case
It follows the words of Parliament but provides an escape route where there is a harsh or absurd result. This is arguably what Parliament would have truly intended anyway and prevents them having to go back and spend time changing the law.
e.g r v allen
Chooses the most sensible outcome
explination and example case
This again avoids the problems of the literal rule by providing sensible decisions where a repugnant situation would appear.
Re Sigsworth
Closes loopholes in the law
explination
If a defendant is attempting to get away with an offence by relying on the strict interpretation of a law to their advantage, using the golden rule can ensure they are not able to escape punishment
Saves time for Parliament
explination and example
As judges will make a decision which then sets a precedent, Parliament do not have to waste time changing the law as future courts will just follow the rule made by the judge
r v allen
Golden Rule - Disadvantages
1)limited in its use
2)Judges can change the meaning of a statute
3)It requires there to be an absurd outcome – and not just injustice
4)unpredictable
limited to its use explination and case example clue for case: military base
It is only used in rare occasions so it is impossible to predict when it will be used. This causes problems for the public following the law and lawyers advising clients as they do not know when a judge will consider something to be ‘absurd’.
Adler v George 1964
D found inside a restricted military base
Law said it was illegal to be ‘in the vicinity’ of the base (but not inside)
GUILTY as ‘in the vicinity’ interpreted to include inside the base too
Judges can change the meaning of a statute
explination and case example
This infringes the rules of the separation of powers by allowing judges to become law makers. This is undemocratic as Parliament should be the ones to change the laws
Re Sigsworth (arguably Parliament needed to change this law)
It requires there to be an absurd outcome – and not just injustice explanation and example case
Judges can only move away from the literal rule where there is a result which is ‘absurd’ – but if the result is just unfair and unjust, judges may not be able to make a different decision
LNER v Berriman
Unpredictable
explanation and example- not a case but a phrase…flying
There is a lack of guidelines in terms of when judges will use this rule and when something is considered absurd or not. Michael Zander “feeble parachute”-It can be argued that it is not always possible to define what is ‘absurd’. This is a subjective decision.
mischief Rule - Advantages
1)Promotes the purpose of the law
2)More likely to produce a ‘just’ result
3)Closes loopholes in the law
4)Allows judges to use external aids
Promotes the purpose of the law
explination and example case Smith v Hughes 1960 cle prossy on balcony
It allows judges to look back at the gap in the law which the Act was designed to cover.
Its emphasis is on making sure the gap in the law is filled and prevents people using loopholes to get out of being punished.
Smith v Hughes 1960
Women were prosecuted for soliciting their services from private balconies
The law made it illegal to do this in public
GUILTY as the ‘mischief’ the Act tried to deal with was soliciting, and as they could be seen by the public this was included, even though they were technically in private
More likely to produce a ‘just’ result
explanation and case example
the outcome of the case is more likely to provide justice in the circumstances.
It also allows for advances in technology or medical science to be put into the context of the original Act of Parliament.
Royal College of Nursing v DHSS
Closes loopholes in the law explanation and case … military
If Parliament have made an error when writing the law and this has left a loophole where the problem in society may not be properly dealt with, the mischief rule allows this to be closed
Smith v Hughes
Allows judges to use external aids
explanation and example case
Hansard (a written book which includes a transcript of all the debates in Parliament) can be used by judges to help to determine the mischief. Pepper v Hart (case that decided this could be used)
Mischief Rule - Disadvantages
1)Risks judicial law making
2)Leads to uncertainty in the law
3)Has retrospective effect
4)Outdated
Risks judicial law making explanation and case example..military
If judges are trying to fill the gaps in the law with their own views on how the law should deal with the ‘mischief’ or problem then this is undemocratic. Smith v Hughes
Leads to uncertainty in the law
explanation and example case- bike riding drunk
It is impossible to know when judges will use the rule and also what result it might lead to. This makes it difficult for lawyers to advise their clients.
Corkery v Carpenter 1951
Licensing Act forbid someone to be drunk and in charge of a ‘carriage’
D was riding his bike while drunk
GUILTY as the ‘mischief’ was drunk people making the roads unsafe, and this included by a bike
Has retrospective effect explanation and case example- prossies
It can have the effect of making something a crime that is punished, when it might not have been technically illegal when the offender did the act
Smith v Hughes (the prostitutes were not technically breaking the law when they acted)
outdated explanation and example case- 1584..started it
The rule was made in 1584 and is therefore out of date and does not reflect modern laws – e.g. not every Act starts due to a problem
Heydon’s Case (1584)it was the first case to use what would come to be called the mischief rule of statutory interpretation
Purposive Approach - Advantages
1)Leads to justice in individual cases
2)Useful for new technological/ scientific developments
3)Parliament’s intentions can be discovered with looking when the law was passed
4)Saves time for Parliament
Leads to justice in individual cases
explanation and example case
Looks at each case individually and makes the decision that is most fair when looking at the purpose that Parliament wanted when they passed the law originally.
Ex Parte Smith
Useful for new technological/ scientific developments
explination and case example-Quantavalle…embryos
This means that the law can be updated and developed quickly through case law rather than having to wait for Parliament to change the law, as judges can consider what Parliament would have included in the law if the technology had existed when the law was written
hallenge was made to the courts by the Pro Life Alliance when the HFEA carried out research on cloned embryos, which are not fertilised
The Human Fertilisation and Embryology Act 1990 had granted HFEA permission to research into fertilised embryos
RESEARCH ALLOWED TO CONTINUE as the purpose of the law had been to allow scientific research into embryos – it was not important if they were fertilised or not
Parliament’s intentions can be discovered with looking when the law was passed
explanation and case example
Judges are able to look at the debates that took place in Parliament when the law was passed (Hansard) and this makes it easier for them to discover what their intentions were
Pepper v Hart
Saves time for Parliament
explanation and case example-killing their mom
Rather than Parliament having to go back and change laws which include errors (as they have to with the literal rule), the judge’s decision sets a precedent to be followed in future cases
Ex parte Smith
Purposive Approach - Disadvantages
1)Gives too much power to unelected judges
2)It can be difficult to discover the intention of Parliament
3)Leads to uncertainty in the law
4)Judges ignoring wording of Parliament
Gives too much power to unelected judges
explanation and case example … embryos
Some judges may use this approach as an excuse to make their own decisions without having to strictly follow the words of Parliament. This is not democratic as judges are not elected, and so only Parliament should have the power to do this
Quantavalle
It can be difficult to discover the intention of Parliament
explanation and example case…embyos
Not all Acts of Parliament will clearly state what the purpose of the law is, meaning that judges will have to guess – and they could guess incorrectly. This can make the law inconsistent and is undemocratic
Quantavalle
Leads to uncertainty in the law
explanation and example case…killing their mom
As the law gives too much power to judges to interpret a law however they want, it can mean that the outcome of a case will not be certain which makes it difficult for lawyers to advise clients. ex parte Smith
Judges ignoring wording of Parliament explanation and example case- killing their mom
Judges may use this rule even when the law is clear in order to make a decision they feel is more fair – this is not their job or decision
Ex Parte Smtih
